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PETITIONER: M. SUNDERAMOORTHY

       Vs.

RESPONDENT: THE STATE OF TAMIL NADU THROUGH INSPECTOROF POLICE

DATE OF JUDGMENT05/04/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) RANGNATHAN, S.

CITATION:  1990 AIR 1269            1990 SCR  (2) 335  1990 SCC  (3) 257        JT 1990 (2)    46  1990 SCALE  (1)677

ACT:     Prevention  of  Corruption  Act,  1947:  Sections  4(1), 5(D(d) and 5(2)--Accused shown to have accepted money  which was not legal remuneration--Proves guilty  conduct--Rebuttal must be by explanation which must be true, not merely  plau- sible.

HEADNOTE:    The  appellant  was an  Accountant-cum-Headclerk  in  the Forest  Training School, PW-3 the Principal of the  training school,  and  PW-I the canteen contractor.  The  prosecution alleged that on the basis of a complaint made by the  appel- lant  that the food served in the canteen  was  substandard, PW-3  issued  a  show cause notice to PW-I, as  to  why  the licence  for  the canteen should not be cancelled  and  that thereafter the appellant sent for PW-I and demanded a  bribe of  Rs. I00. As the appellant pressed the demand from  PW-1, the  latter  made a complaint to PW-6,  the  inspector,  who arranged a trap.     The trap was arranged. PW-I handed over the money to the appellant,  who received the same. PW-6 conducted  the  phe- nolphthalein  test  with  reference to the  fingers  of  the appellant.  The test was positive. The currency  notes  were seized, and the appellant arrested chargesheeted.     The  Trial  Judge  accepted  the  prosecution  evidence, rejected  the pleas of the appellant that PW-1 had  returned the  amount  of Rs. 100 due to him, that there had  been  no demand  for a bribe as there had been no occasion for  doing so, and recorded conviction.     The  appellant appealed to the High Court and  contended that there was no independent evidence regarding the demand, the  messenger who had contacted PW-1 at the behest  of  the appellant  had not been examined, the solitary  evidence  of PW-I is insufficient and that the explanation offered by the appellant  was  probable  and that there  is  no  conclusive evidence  to  hold that the appellant was guilty.  The  High Court took the view that the recovery of the currency  notes from the appellant prove his guilty conduct, in view of  the presumption arising under section 4(1) 01’ the Prevention of Corruption  Act and that the same has not been rebutted  and held that though the conviction under

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335 section  161  I.P.C. and section 5(2) of the  Prevention  of Corruption  Act, 1947 is to be maintained, no separate  sen- tence  need be awarded under section 161 I.P.C. It,  accord- ingly,  confirmed the conviction of the appellant  and  sen- tenced him to undergo rigorous imprisonment for 15 months.     In  the appeal to this court, it was contended that  the appellant  had  a  consistent case even  from  the  earliest opportunity, that the currency notes found in his possession was the money returned by PW-I, and that the presumption, if any,  arising under section 4 was rebutted, and the  convic- tion cannot therefore be sustained. Dismissing the appeal, this Court     HELD: 1. The appellant has not even by preponderance  of probability  succeeded  in rebutting the  presumption  under section 4(1) of the Prevention of Corruption Act. [338C]     2.  The Court has no choice once it is established  that the accused person has received a sum of money which was not due  to him as a legal remuneration, but to draw a  presump- tion  that  the  person received the money as  a  motive  of reward.  However,  it is open to that person  to  show  that though that money was not due to him as legal  remuneration, it  was legally due to him in some other manner or  that  he received it under a transaction or an arrangement which  was lawful.  The explanation offered by the person should  be  a true one and not one which is merely plausible. [339B-C; F]     Dhanvantrai  Balwantrai Desai v. State  of  Maharashtra, AIR 1964 SC 575, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  8 18 of 1979.     From  the Judgment & Order dated the 27.10.1979  of  the Madras High Court in Crl. A. No. 4 of 1977. A.S. Nambiar and K.R. Nambiar for the Appellant. V. Krishnamurthy for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. This appeal is directed  against  the judgment  dated 27.10.1979 of the High Court of Madras  con- firming  the conviction of the appellant under section  161, I .P.C. and under section 336 5(2) read with section 5(1)(d) of the Prevention of  Corrup- tion  Act. The appellant had been sentenced to undergo  R.I. for  15 months under section 5(2) read with section  5(1)(d) of  the Prevention of Corruption Act with no  separate  sen- tence  under section 161 I.P.C. The brief facts of the  case are as under.     The  appellant,  Sunderamoorthy was  an  Accountant-cum- Headclerk in the Tamil Nadu Forest Training School at Vaigai Dam. He took charge of the office on 6.10.1975 and had  been residing in a house opposite the training school. PW-3,  the Principal  of the training school issued Ex. P-2 show  cause notice to the PW-1, Venkataswamy, the canteen contractor, as to  why  his licence for running the canteen should  not  be cancelled. This was on the basis of a complaint made by  the appellant that the food served in the canteen was  substand- ard.  The  appellant had taken food in the canteen  for  two days and being dissatisfied discontinued the practice before the  notice  was issued. The prosecution case  is  that  the accused  thereafter  sent for PW- 1, informed  him  that  he would help him in restoring the licence and demanded a bribe of  Rs. 100. On 21.10.1975, the appellant is stated to  have

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pressed the demand to PW- 1. The latter made a complaint  to PW-6 who thereupon arranged a trap. As instructed, PW-1  was ready with ten rupees currency notes. PW-6 after drawing  up a mahazar in the presence of PW-2, Jaganathan, Assistant  of the  Office of the Special Tehsildar,  Usilampatti  directed PW-1  to give the notes to the appellant. PW-1  handed  over the money to the appellant who received the same. When PW- 1 emerged, PW-6 along with PW-2 confronted the appellant.  The appellant  produced the currency notes. PW-6  conducted  the phenolphthalein  test with reference to the fingers  of  the appellant.  The test was positive, the currency  notes  were seized  and  the  appellant arrested.  PW-3,  the  Principal produced the concerned file relating to  show  cause notice, from the house of the appellant on  the same day. Finally, the appellant was chargesheeted.     At  the trial, the prosecution witnesses  supported  the case.  PW- 1 affirmed the fact that the appellant  made  the demand and had also received the amount on 22.10. 1975.  The recovery  of the currency notes from the appellant  was  not challenged.  The  plea of the appellant was that PW-  1  had returned the amount due to him and there had been no  demand for a bribe as there had been no occasion for doing so.  The Trial Court accepted the prosecution evidence, rejected  the plea  of the appellant and recorded the  conviction.  Before the High Court, the .contentions of the appellant were  that there was no independent evidence regarding the demand,  the messenger who had contacted PW-1 at the 337 behest of the appellant had not been examined, the  solitary evidence of PW-1 is insufficient, the explanation offered by the  appellant was probable and there is no conclusive  evi- dence  to hold that the appellant. was guilty. It  was  also urged that the appellant being new in the office could exert little  influence on the Principal and the whole  story  is, therefore improbable. These contentions did not find  favour with  the High Court. It took the view that the evidence  of PW- 1 find corroboration in the testimony of PW-2 and 6  and the contemporary records. The recovery of the currency notes from  the appellant proves the guilty conduct of the  appel- lant  in view of the presumption arising under section  4(1) of  the  Prevention  of Corruption Act which  has  not  been rebutted.  The decisions of the Court in State of  Rajasthan v.  Mohamed  Habeeb, [1973] Crl. L.J. 703;  C.I.  Ernden  v. State of Uttar Pradesh, AIR 1960 SC 548 and Lohana  Kantilal v.  State,  AIR 1954 Saurashtra 12 1 were referred  to.  The High Court thought that though the conviction under  section 161 I.P.C. and section 5(2) of the Prevention of  Corruption Act is to be maintained, no separate sentence need be award- ed under section 161 I.P.C.     The appellant has reiterated the contentions before  us. The  learned counsel appearing for the  appellant,  however, maintained  that  the appellant had a consistent  case  even from the earliest opportunity that the currency notes  found in  his possession was the money returned by PW-1, the  cir- cumstances  of the case would probabalise this case  of  the appellant and the presumption, if any, arising under section 4  is rebutted and the conviction cannot therefore  be  sus- tained.  PW-6  has  stated at the time of  the  seizure  the explanation  offered  by  the appellant was  that  PW-1  had returned  the loan and that he had given the money  for  the Dipawali. The case that has been developed in the course  of the  trial is not that of a loan transaction but payment  of an  advance  of Rs. 125 in the canteen  when  the  appellant started  to  take food there. The case of Dipawali  gift  or return of a loan given to PW- 1 has not been even suggested.

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It cannot, therefore, be said that there had been consistent explanation  for  the  appellant. PW-3,  the  Principal  has averred  in  unequivocal  terms that Ex.P-2  memo  had  been issued  on  the  basis of the complaint  received  from  the appellant  that on getting the explanation from PW- 1 he  on 18.10.1975  itself  passed orders and closed the  file.  The order  made was not disclosed to PW-1 and  till  22.10.1975, the  file itself was kept by the appellant in  his  personal custody.  He had thereafter received the amount of  Rs.  100 from PW- 1. This conduct of the appellant is clearly  incon- sistent  with the transaction of loan or return of money  by PW- 1. 338     This  Court observed in Dhanvantrai Balwantrai Desai  v. State of Maharashtra, AIR 1964 SC 575 as under: "Where any gratification (other than legal gratification) or any  valuable  thing is proved to have been received  by  an accused  person the court is required to draw a  presumption that  the person received that thing as a motive  of  reward such  as is mentioned in section 161, I.P.C. Therefore,  the Court  has no choice in the matter, once it  is  established that  the accused person has received a sum of  money  which was not due to him as a legal remuneration. Of course, it is open  to that person to show that though that money was  not due  to him as legal remuneration it was legally due to  him in  some  other manner or that he had received  it  under  a transaction  or an arrangement which was lawful. The  burden resting on the accused person in such a case would not be as light  as it is where a presumption is raised under  section 114  of  Evidence Act and cannot be held  to  be  discharged merely by reason of the fact that the explanation offered by the  accused is reasonable and probable. it must further  be shown that the explanation is a true one. The words  ’unless the  contrary is proved’ which occur in this provision  make it clear that the presumption has to be rebutted by  ’proof’ and  not by a bare explanation which is merely plausible.  A fact  is  said to be proved when its existence  is  directly established  or when upon the material before it  the  Court finds its existence to be so probable that a reasonable  man would act on the supposition that it exists. Unless,  there- fore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."     On  a  careful consideration of the  facts  and  circum- stances, we are not satisfied that the appellant had even by preponderance  of  probability succeeded  in  rebutting  the presumption.     The  argument  that clause (d) of section  5(1)  of  the Prevention of Corruption Act is not attracted on the  proved facts is also not impressive. We find no merit in the appeal. It is accordingly dismissed. N.V.K.                                                Appeal dismissed. 339